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TIME TO REVISIT THE RESERVATIONS BY: PRISHA BHARDWAJ
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TIME TO REVISIT THE RESERVATIONS
AUTHORED BY: PRISHA BHARDWAJ
MANAV RACHNA UNIVERSITY,
SCHOOL OF LAW,
FARIDABAD
ABSTRACT
This research article aims to identify
the issues and provide some preliminary remedies for India's reservation
policy. This paper focuses solely on Articles 15 (4), 15 (5), 16 (4), 30(1) of
the Indian Constitution, etc. This research examines the influence of
reservations on socioeconomic growth by evaluating relevant literature and
empirical evidence. The article contends that while reserves have clearly given
marginalised populations opportunity, they cannot bring about socioeconomic
growth on their own. In conclusion, this essay offers a comprehensive knowledge
of the intricate problems relating to reservations and their effect on
socioeconomic growth. The purpose of this paper is to examine the provisions of
Articles 15(4) and 16(4) of the Indian Constitution.
Keywords- Remedies, Indian Constitution,
Reservation, Socio-economic growth, Marginalised population.
INTRODUCTION
Reservation
system has been a highly debated topic in India for many years. It refers to
the practice of reserving a certain percentage of seats in educational
institutions, government jobs, and other areas for people belonging to certain
castes or tribes. The reservation system was introduced in India to uplift the
backward and oppressed classes and bring them on par with the rest of society.
However, over the years, the reservation system has become a highly
controversial issue, with many arguing that it has outlived its usefulness and
is now doing more harm than good.
Reservations
were adopted in India during the later decades of the nineteenth century, when
the subcontinent could be largely split into two primary types of government,
British India and 600 Princely republics. Some of these states were progressive
and keen to modernise through the promotion of education and industry, as well
as by retaining internal unity. South and Western India take a keen interest in
the awakening and advancement of minorities and underprivileged parts of
society[1].
The
Supreme Court's ruling on November 7, 2022 upholding the constitutional validity
of the 103rd Constitutional Amendment[2],
which grants an additional 10% reservation to members of the Economically
Weaker Sections (EWS) of upper castes for admission to educational institutions
and jobs in government, has generated more questions than it has addressed.
There were several issues before the five- member Constitutional Bench and the
3:2 split verdict came with four separate judgements with three written by Mr.
Justices Dinesh Maheshwari and J.B. Pardiwala and Ms. Justice Bela M. Trivedi upholding
the 103rd Amendment[3]
not violative of the basic structure of the Constitution and the then Chief
Justice of India Mr. U.U. Lalit going with the lone dissenting judgement of Mr.
Justice S. Ravindra Bhat.
The
unanimous decision of the five judges that reservations the five judges all
concurred that economic status alone should not be the exclusive basis for
discrimination and that nothing prevents the State from establishing a new
standard for affirmative action by constitutional amendment. While Ms. Justice
Trivedi found that the 103rd Constitutional Amendment cannot be struck down on
the grounds of being discriminatory and must be treated as an affidavit, Mr.
Justice Maheshwari stated that the Amendment cannot be said to be violating the
fundamental structure of the Constitution because it is an instrument of
affirmative action intended to ensure an all-inclusive march towards goals of
egalitarian society.
Mr.
Justice Pardiwala agreed with their points of view, adding that
"reservation is not an end, it is a means, and it should not be allowed to
become a vested interest." The dissenting judges qualified their position
by stating that while "economic criteria per se is permissible in relation
to access of public goods (under Article 15)[4],
the same is not true for Article 16[5],
the goal of which is empowerment through representation of the community."[6]
CROSSING 50% CEILING
As a
result, we now have 59.5% reservations in government positions and educational
institution admissions. These are 15% for Scheduled Castes (SC), 7.5% for
Scheduled Tribes (ST), 27% for Other Backward Classes (OBC), and 10% for EWS of
non-reserved or general category persons. Even without the 10% EWS reservation,
Tamil Nadu currently has a total reservation of 69%. This violation of the 50%
restriction was made permissible by the 76th Constitutional Amendment of 1994[7],
which included in the Ninth Schedule Entry 257A--the Tamil Nadu Backward
Classes, SC/ST Act, 1993[8].
The
legality of the enactment, as well as whether its incorporation by the 76th
Constitutional Amendment[9]
violates fundamental structure, are directly at question in a number of cases
before the Supreme Court. The decision on the EWS quota has a direct bearing on
the likely outcome of the challenge- even if the majority decision holds that
the reservation for EWS does not cause any damage to the basic structure of the
Constitution due to a breach of the ceiling limit of 50% because that limit is
not inflexible and, in any case, applies only to the reservations contemplated
by Articles 15(4)[10],
15(5)[11],
and 16(4)[12]
of the Constitution. States are already clamouring to lift the 50% ceiling on
SC, ST, and OBC reservations.
Article 15(4), provides that nothing in this article or in clause
(2) of Article 29 shall prevent the State from making any special provision for
the advancement of any socially or educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes.
Article
15 (5),
provides that nothing in this Article or in Article 19 (1) (g) shall prevent
the State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled
castes or the Scheduled tribes in so for as such special provisions relate to
admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in Article 30 of the constitution of
India.
Article 16(4), provides that nothing in this article shall prevent
the State from making any provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State.
On
November 11, 2022, just four days after the Supreme Court decision, the
Jharkhand Assembly enacted a Bill to increase the total reservation provided to
different categories to 77%. The Assembly passed an amendment to the Jharkhand
Reservation of Vacancies in Posts and Services Act, 2001, in a special session,
increasing the reservations for STs, SCs, EBCs, OBCs, and EWS in government
employment from 60% to 70%. The Bill recommends that the state lobby the Centre
for revisions to the Constitution's Ninth Schedule. In Bihar, the ruling
7-party Mahagathbandhan asked Chief Minister Mr. Nitish Kumar to introduce
legislation in the Assembly session to increase total reservation to 77% from
the current 50%, while Mr. Kumar, in turn, asked the Union Government to
introduce a constitutional amendment to remove the 50% ceiling. In Tamil Nadu,
an all-party meeting led by the ruling Dravida Munnetra Kazhagam (DMK) rejected
the 103rd Constitutional Amendment[13]
providing 10% EWS quota as "against social justice, contradicting several
Supreme Court verdicts, and dividing the poor in the name of caste," and
decided to file a review petition in the Supreme Court against the verdict.
A
proposal has also been made in Rajasthan for the OBC quota to be raised from
21% to 27%. While the majority Supreme Court decision on EWS reservation is
widely interpreted as overturning the previously held inviolable quota ceiling,
a careful reading of the decision reveals that it has confined the 50% limit to
quotas for SCs/STs/OBCs, while labelling the EWS as beyond its pale.
However,
it has also referred to the midway point as "not inflexible" while
analysing several Supreme Court judgements, including the historic Indra
Sawhney[14]
decision, in which judges separately argued that the limit can be exceeded in
"extraordinary circumstances." Following the EWS decision, the sense
is that the 50% limit can be crossed, although with a higher threshold. This is
why, according to certain legal experts, a 50% breach can be justified by a constitutional
amendment under the guise of extreme instances or circumstances.
Persistence
of the Reservation System Caste Divisions- Instead of promoting social harmony
and unity, the reservation system maintains caste-based divisions in society.
It perpetuates the notion of caste hierarchy and fosters a sense of us versus
them. This might lead to greater prejudice and marginalisation of particular
segments of society who do not participate in the reservation system. It also
leads to stigmatisation of individuals who do profit from the reservation
system, as they are perceived to be undeserving and unqualified.
CRY FOR MERITOCRACY
All
of this has occurred at a time when the country is in desperate need of
meritocracy. Initially, the Union Government introduced a 10-year
constitutional provision for reservation in legislatures, government posts, and
educational institutions for certain historically impoverished sectors of
society, known as SCs and STs. Not only was the time limit not followed, but
OBCs were also included in the reservation scheme. When this caused
consternation among those who were outside the ambit of reserved categories,
including upper castes, an EWS quota was introduced for them, while many other
castes, including Jats, Gurjars, Marathas, and others, were left to agitate for
their inclusion in the reserved category. Following the Supreme Court's
decision on EWS quotas[15],
the entire spectrum of reservation threatens to reach ridiculous proportions,
while also becoming a political hot potato that is impossible to handle.
Reservations
were a social and political necessity in India due to the country's unique
caste system, which historically resulted in enormous inequities in society. To
a large measure, these have performed their role. As an affirmative action
programme, they have assisted many, if not all, members of under-privileged and
under-represented populations in growing and occupying legitimate positions.
They established a sense of social justice in the most-marginalised and
underprivileged members of society.
Meritocracy
is the cornerstone of a democratic and progressive society. It rewards hard
work, talent, and dedication, regardless of a person's background or social
status. However, the reservation system promotes mediocrity and undermines
meritocracy. It allows people to gain access to educational institutions and
jobs, not based on their abilities or qualifications, but solely on their caste
or tribe. This can have a detrimental effect on the quality of education and
governance in the country, as people who are not qualified or capable are given
important positions, simply because of their caste or tribe.
Ø WHETHER STATE CAN RESERVE SEATS IN
PRIVATELY RUN EDUCATIONAL INSTITUTIONS?
In
T. M. Pai Foundation case[16],
Islamic Academy case[17],
P. A. Inamdar case[18]
the SC held that the State cannot make reservation of seats in admissions in
privately run educational institutions. To nullify the effect of all the above
cases the Parliament added a new clause (5) in Article 15 and thereby empowered
the State to fix the reservation in privately run educational institutions
also. But this clause does not touch the institutions run by minority under
Article 30 (1)[19]
of the constitution of India.
Now
it has been clear that the State is free to make reservation in private
educational institutions also. Now the question is that what would be
limitation for the reservation, it has been cleared by the SC in Balaji case[20].
In this case the SC held that the state can make reservation up to 50% seats
only.
A POLITICAL TOOL
However,
the downsides of reserve policy are numerous and have a significant impact on
society. Caste-based reservations merely serve to prolong the concept of caste
in society, rather than reducing it as a social component, as the Constitution
intended. The reservation in India is generally bases on Caste and Religion[21].
Reservations
have evolved into a tactic for achieving specific political goals by invoking
class loyalty and fundamental identities. They have resembled internal
partition in that, in addition to being a form of racial discrimination, they
also construct inter-caste walls inside society. It has also become
increasingly clear that the benefits of reservation policy have mainly been
seized by the dominant class among the backward castes, leaving the most
marginalised castes marginalised. It has been noticed that the majority of
reservation beneficiaries are the offspring of the highest-paid professionals
and public officials.
Most
notably, reservations have emerged as the most severe foe of meritocracy. We
are fuelling inflation of modest credentials by giving reservation through
loosened entry standards, rather than promoting a merit-based education system,
which is the cornerstone of many advanced and progressive countries.
Meritocracy
should not be tainted by lowering entry barriers; rather, it should be promoted
by providing financial assistance to deserving but underprivileged individuals.
Today, the IITs and IIMs are held in high regard in the global context only due
to their meritocracy.
FLIGHT OF TALENT
The
most concerning feature of the reservation policy is that ever-increasing
reservation quotas have contributed to the outflow of outstanding human capital
from India. The growing number of Indian students studying at international
universities exemplifies this. This is comparable to the scenario in the 1970s,
when the highest income tax rate of over 90% pushed a huge number of wealthy
people to go abroad, resulting in capital flight.
Furthermore,
reservations have remained a source of contention between reserved and
non-reserved segments of society. While reserved sectors demand more by
increasing their quotas and putting political pressure for the same,
non-reserved sections are doing everything they can to join the bandwagon of
numerous reservations.
Ironically,
if you earn more than Rs. 2,50,000 per year in India, you must pay income tax.
If your family income is less than Rs. 8,00,000 per year, you are eligible for
reservation in government positions as well as enrolment in educational
institutions, as this is the limit of income for the creamy layer
under the OBC and EWS quotas[22].
SUGGESTIONS AND SOLUTIONS
It is agreed that the
issues raised by those opposed to reservation are real while thinking of a
remedy to the aforementioned argument. Caste-based reservation is no longer
necessary in the modern world and is depriving people who are really
economically disadvantaged of chances.
Additionally, the harsh
quota system, which has nothing to do with casteism, only serves to further
divide society, resulting in discrimination and conflicts between various
groups. In actuality, it is the opposite of communal life.
Regardless
of the number of children a family may have, reservation benefits should be
limited to a maximum of two children per family. This would help to control the
OBC population, which will eventually lead to a decrease in their
representation and give way to the principle of equality.
If
we use rural areas as an example, a person from the general category may
experience economic hardship on par with an OBC member; however, under the
reservation criteria, only OBC members are eligible for reservations in
educational institutions or government jobs[23].
CONCLUSION
Now
is the time to reconsider the full scope of India's reservation policy. We must
and can create a better framework for affirmative action for underprivileged
groups in society. Affirmative action can be provided on a broader scale,
taking into account numerous exclusionary characteristics such as caste,
economic status, gender, type of education earned, and so on. In resolving
social justice problems, a complete affirmative action plan would be more
beneficial than reservations.
Any
affirmative action, however, must be designed in such a way that it does not
undermine meritocracy. Only a thorough system of meritocracy can guarantee that
India retains its position of dignity under the Sun in a world that is changing
quickly and in which it still has a lot of catching up to do with many other
countries.
It's
time for policymakers to take seriously the reality that, just as the 1970's
overly high income tax rates encouraged capital flight to tax havens, the
rising reservation quotas have also driven skilled labour out of India. As a
result, over the next ten years, we must gradually eliminate all forms of
discrimination based on caste, community, and money in favour of a meritocracy
that serves the interests of the entire country.
The
reservation system in India is a highly contentious issue, and we are against
it. It is a form of discrimination, a barrier to meritocracy, perpetuates
caste-based divisions, does not address the root causes of inequality, and does
more harm than good. Instead, we need to focus on empowering marginalized
communities through education, skill development, and employment opportunities.
We need to create a more inclusive and equitable society, where everyone has an
equal opportunity to succeed, based on their abilities and qualifications.
[1]Reserving The Verdict:
How Have Courts Ruled On Reservation And Why EWS Quota Has Raised Concerns
, available at:
https://www.outlookindia.com/national/how-have-courts-ruled-on-reservation-over-the-years-what-are-concerns-on-ews-reservation-news-244184 (Last Modified December
12, 2022)
[2] Constitutional Amendment Act,
2019, No. 103, Acts of Parliament, 2019 (India).
[3] Id.
[4] INDIA CONST. art. 15.
[6] Supreme Court upholds 10%
reservation for Economically Weaker Sections, available at: https://www.nationalheraldindia.com/india/supreme-court-upholds-103rd-constitution-amendment-2019-which-provides-10-per-cent-ews-reservation (Last Modified November 7, 2022).
[7] Constitutional Amendment Act,
1994, No. 76, Acts of Parliament, 1994 (India).
[8] The Tamil Nadu Backward Classes,
Scheduled Castes and Scheduled Tribes Act, 1993, No. 45, 1994(India).
[9] Id.
[10] INDIA CONST. art. 15, cl. 4.
[11] INDIA CONST. art. 15, cl. 5.
[12] INDIA CONST. art. 16, cl. 4.
[13] Constitutional Amendment Act,
2019, No. 103, Acts of Parliament, 2019 (India).
[14] 1992 Supp (3) SCC 217
[15] SCC OnLine SC 1540
[16]
(2002) 8 SCC 481
[17] (2003) 6 SCC 697
[18] (2005) 6 SCC 537
[19] INDIA CONST. art. 30, cl. 1.
[20] AIR 1963 SC 649
[21]
P.P. Rao, ‘right to equality and the reservation policy’, journal of the Indian
law institute,(2000), vol. 42, p.194
[22] ?8 lakh income ‘reasonable’ cap for EWS quota, available at: https://www.thehindu.com/news/national/8-lakh-criterion-to-determine-ews-is-reasonable-govt-panels-report-in-sc/article38091357.ece#:~:text=A%20government%20committee%20report%20in,reservation%20in%20admissions%20and%20jobs (Last Modified January 2, 2022)
[23] All
About Reservation Policy In India, available at: https://blog.ipleaders.in/reservation-policy-india/ (Last Modified March 9, 2016)
Article Information
TIME TO REVISIT THE RESERVATIONS BY: PRISHA BHARDWAJ
Authors: PRISHA BHARDWAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/08
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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